How to Communicate Settlement Limitations in Medical Malpractice Cases

The media can be blamed in part, for perpetuating a lot of the misinformation that Americans receive, when it comes to the value of compensation in medical malpractice suits. Who hasn't seen a news clip that sensationalizes a large multi-million-dollar court award, for a grievous case of negligence? Chances are, the public sees this kind of settlement information through advertising for legal services. Understandably, promises of potential compensation create a valuable stream of leads and new clients, for legal professionals.

While that type of financial award for a single individual is rare, it sticks in our memory as being something extraordinary. People talk about high compensation cases and they make the news, and so, over time, many citizens assume that all malpractice suits are awarded similarly. Pain and suffering are accommodated by a large financial settlement, and that is the baseline understanding that many people have about medical malpractice suits.

Large settlements do occur, but often they are the result of a class action suit, and hundreds if not thousands of plaintiffs seeking damages against a manufacturer, retailer or employer. Not only does the law closely define ‘reasonable loss' in a personal injury case, but states have legislation that caps the amount of financial reparation that plaintiffs can seek.

Malpractice Suits Have Statutes of Limitation That Vary by State

There is a time limit legally, that prohibits legal action against medical staff after a certain duration of time has passed. Like all criminal and negligence cases, an individual cannot be found guilty decades after performing an action or service; the same holds true for physicians and medical malpractice.

However, certain types of medical negligence may be impossible to detect right away, within a short period of time after a surgical or health procedure. The statute of limitations for malpractice begins after the ‘discovery' of a personal injury is made. Once a patient has recognized an error, injury or act of negligence that has impacted their health, they are provided with a reasonable amount of time to pursue legal action with the care providers or institution.

One of the caveats of the ‘discovery rule' is that the statute of limitations can begin sooner than the official report date of the injury. For instance, if a patient has pain or discomfort, and chooses to wait a year or two before seeking medical attention, the statute may apply to the date that the patient began to experience ill effects. An inaction on the part of the patient or their family to investigate and diagnose a potential problem (where symptoms are evident), can shorten the period for legal action, making it difficult or impossible to file a malpractice suit.

While this scenario may seem improbable, some patients can have medical anxiety and paralyze concerns about their health. It is not uncommon for patients to simply endure pain and discomfort while remaining fearful of seeking medical advice or evaluation. The patient may be convinced the condition is serious or even terminal, and wish to avoid confirming ‘bad news' with a medical examination. More education is required to inform patients of their right to know, and why early evaluation is important, both for addressing worsening health needs and in the event of doctor liability in a medical malpractice case.

For a listing of the statute of limitations for medical malpractice suits in the United States, visit Nolo.com for a state-by-state summary.

Managing Expectations for Malpractice Compensation

When a patient has a solid malpractice case, it is neither cause to celebrate nor anticipate a financial windfall from a settlement. Citizens, in general, have a poor understanding of malpractice law, and how the value of compensation is awarded by the court.

According to Chicago attorney Jonathan Rosenfeld, “It's important for legal professionals to support client education by informing them of reasonable expectations for financial settlement and malpractice compensation. That through documentation, evaluation, and review of each case, the courts seek to compensate first for objective out-of-pocket expenses, and not a subjective loss, based on intangible assumptions.

The process is far from writing a blank check to compensate for expenses and pain and suffering. Malpractice insurance is represented by expert legal teams, who are less concerned with the moral aspects of a personal injury case, and focused entirely on minimizing loss to the insurer. As such, receipts for medical expenses, patient charts, medical history (even pre-dating the malpractice event) are all collateral used to whittle the compensation amount to the least possible denominator.

What personal injury clients need to know, is that despite astronomical class action suit awards sensationalized in the media, the average malpractice patient wins a refund of therapeutic, medical expenses, prescriptions, lost income and legal fee expenses, but rarely much more than that. The patient's chances of retiring on a malpractice award are minimal; the law is focused more on making sure the injured walks away refunded for their financial loss. The result is a patient who concludes a malpractice suit by breaking even financially.

The Educational Responsibility of Legal Counsel

One of the most important steps that legal counsel can do, to enhance the integrity of legal practice, is to avoid using large settlement claim examples as a method of advertising for new clients. The disservice that lawyers do to patients by setting up a grandiose expectation of a large settlement, can be damaging both to the patient, and to the practice. Malpractice suits rarely make overnight millionaires out of personal injury cases in America, thanks also in part to caps on subjective loss, including pain and suffering, which varies by state.

An informed and grounded client will be able to participate in the administration of the malpractice suit, and understand that process can be a lengthy and arduous one with no financial guarantees.

An e-book or pamphlet which outlines the state of residence and statute of limitations, as well as compensation caps should be available for all new clients. A thorough debriefing of each personal injury client should also include a practical discussion about the reasonable expectation for financial awards and refunding of medical expenses. Start each client off with a strong understanding of the legal requirements for a malpractice case, and what will be expected of them throughout the proceedings.

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